144 Mo. 203 | Mo. | 1898
Joseph H. Price executed, a mortgage, with power of sale, on certain land in Barry county, to defendant to secure a debt of $250 and interest. Price died leaving a widow and children, some by a prior marriage, and the plaintiffs, who are minors. Defendant sold the property under the mortgage for $1,400 but only required the purchaser to pay $300, just enough to satisfy his mortgage debt, interest and costs, and then made a deed to the purchaser, who entered into the possession of the land. The mortgage required thirty days notice of sale to be given, but defendant gave only twenty-four. The minor heirs by their next friend sued defendant to recover $1,100, the balance of the price the land brought at the foreclosure sale. Defendant set up that he had only received $300; that the notice of sale was insufficient and therefore the effect of the sale was simply to transfer the mortgage to the purchaser, and that the equity of redemption still remained to the plaintiffs. The. plaintiffs obtained judgment in the circuit court for $1,364. Defendant appealed to the St. Louis Court of Appeals. That court affirmed the judgment below, Judge Biggs dissenting, and the cause was certified to this court because of the opinion of Judge Biggs that the title to real estate is involved in this action, as construed by this court in Gray v. Worst, 129 Mo. 122, and that the decision of the St. Louis Court of Appeals is in conflict with the decision of this- court in Kerr v. Bell, 44 Mo. 120.
I. The first question for our determination, therefore, is, whether the title to real estate is involved in this action so as to confer jurisdiction upon this court under section 12, article VI, Constitution 1875.
The decision in Gray v. Worst, 129 Mo. 122, undoubtedly affords room for the opinion of Judge
The matter, however, did not rest here. On June 8, 1897, Fischer v. Johnson, 139 Mo. 433, was decided. It was an action in replevin for a crop which had been severed from the land, and it was claimed that as the ownership to the land determined who had the right to the crop grown on the land, the title to real estate was involved. Brace, J., speaking for the Court in Banc,
Heman v. Wade, 141 Mo. 598, decided December 7, 1897, was a suit in equity to enjoin waste pending an ejectment suit. Macearlane, J., said: “Nor do we think the title to real estate is so involved as to give this court jurisdiction of the appeal. It is true, the right of plaintiffs to injunctive relief may depend upon their title to the land and their right to its possession; yet the title is only incidentally or collaterally involved. The suit is merely in aid of the pending ejectment suit,
State ex rel. v. School District, 148 Mo. 89, was a proceeding by mandamus to compel the levy of a tax to pay a sum allowed relator by the commissioners in a condemnation suit. Williams, J., followed Hilton v. St. Louis, supra; Heman v. Wade, supra, and Fischer v. Johnson, supra, and said: “If relator should be successful in this action, he will be entitled to a peremptory writ of mandamus, compelling the levy of a tax to pay the same. If defeated, the judgment will simply deny said relief. In neither event will the title to real estate be directly affected.”
Thus it appears that Gray v. Worst, 129 Mo. 122, was not in harmony with the rulings of this court made prior to that decision, that it was not followed at the same term of this court in Hilton's case, that it was expressly overruled in Fischer v. Johnson, 139 Mo. 433, and the principle it decided has been uniformly held exactly the other way since then, in Heman v. Wade, supra, and in State ex rel. v. School District, supra. It is now firmly settled that to give this court jurisdiction under section 12 of article VI of the Constitution,
The opinion of the St. Louis Court of Appeals, as expressed by Judges Bland and Bond, is not in conflict with the opinion of this court in Kerr v. Bell, 44 Mo. 120. That was a case where a minor made an exchange of property with a person sui juris. Immediately upon attaining his majority the minor disaffirmed the contract, restored what he had received under it and demanded a return of his property. This is a ease where minors sue to recover the excess over the secure d debt resulting from a sale of the land under a mortgage made by their father during his life. There is no Contract made by a minor which may be avoided on his attaining his majority. The contract was made by their father, and is not void or voidable.
It is perfectly manifest therefore, that the ease of Kerr v. Bell, 44 Mo. 120, has no application to this case, nor the least bearing upon or relationship to it.
The majority decision of the St. Louis Court of Appeals announced a correct conclusion.
The judgment of the circuit court is therefore affirmed.'